Happy New Year--Time To Switch To A Rolling Twelve Month FMLA Period

Happy New Year! 

For employers that permit employees to accrue 12 weeks of FMLA leave on a calendar year basis (or do not specify any other method in their policies), January 1, 2010 will mean a clean slate for any employees who may have exhausted their 12 weeks of FMLA leave in 2009.  Even employees who exhausted their 12 weeks as recently as December 31 will automatically be eligible for FMLA leave as of January 1 so long as they worked 1,250 hours in the prior twelve month period and otherwise meet the eligibility requirements.

Employers that permit their employees to use 12 weeks of FMLA leave per calendar year should give serious thought to converting to a rolling 12-month accrual basis rolling backward from the date an employee uses any FMLA leave.  Note, however, that under the Revised Regulations  (Section 825.200(d)(1)) an employer wishing to change to another alternative is required to give at least 60 days notice to all employees, and the transition must take place in such a way that the employees retain the full benefit of 12 weeks of leave under whichever method affords the greatest benefit to the employee.  During the running of the 60-day notice period, an employee needing FMLA leave may use the option providing the most beneficial outcome to that employee.  At the conclusion of the 60-day period, the employer may implement the new method of calculation.

Employers requiring assistance with revising their policies to reflect a change to a rolling accrual method should consult their counsel. 


Focus on Revised FMLA Regulations: When Do Employers Count A Holiday As FMLA Leave?

With the Memorial Day holiday approaching, I am being asked by employers whether the holiday counts against the 12-week FMLA leave entitlement of employees who have requested FMLA leave.  

The answer depends upon the length of the leave.  Under the Revised FMLA Regulations that went into effect earlier this year (see 29 C.F.R. Section 825.200(h)), if an employee takes a full workweek of FMLA leave during which a paid holiday falls, the holiday counts against the employee's FMLA entitlement.  If the employee takes FMLA leave in increments of less than a full workweek, and a holiday falls on a leave day, that day does not count against the employee's 12-week FMLA leave entitlement. 

For example, if an employee requires FMLA leave for the full week of Monday, May 25, through Friday, May 29, 2009, for surgery due to a serious health condition, Memorial Day will count as an FMLA leave day.  However, if the employee only requires FMLA leave for Tuesday, May 26, and Wednesday, May 27, 2009, for continuing treatment related to a serious health condition, Memorial Day would not be counted against the employee's FMLA leave entitlement. 

Employers should keep these rules in mind as the other summer holidays--Fourth of July and Labor Day--present similar scenarios.


Focus on Revised FMLA Regulations: Revised Notice and Certification Forms

I have received a number of requests for a link to the Department of Labor's new Notice and Certification Forms.

Under the "Additional Information on the Final Regulations" section of the site, you will find the following forms developed by the Department of Labor: 

  • WH-380-E Certification of Health Care Provider for Employee's Serious Health Condition
  • WH-380-F Certification of Health Care Provider for Family Member's Serious Health Condition
  • WH-381 Notice of Eligibility and Rights & Responsibilities
  • WH-382 Designation Notice
  • WH-384 Certification of Qualifying Exigency for Military Family Leave
  • WH-385 Certification for Serious Injury or Illness of Covered Servicemember -- for Military Family Leave

Generally, using the Department of Labor's forms creates a "safe harbor" for employers.  Assuming that the employer completes the forms correctly and otherwise complies with the applicable notice requirements set forth in the Regulations, the employer will not be liable for an FMLA violation premised upon a failure to provide adequate notice and/or request an appropriate certification. 

That said, I recommend that employers have their legal counsel review, in particular, their Notices of Eligibility and Rights and Responsibilities and Designation Notices to ensure that they are completing them in a manner consistent with the Revised FMLA Regulations and their company's practices and policies.  Each form has a number of options which the employer must select in order to complete the form.  For example, the employer will need to notify the employee requesting leave of any accrued paid time off that will be substituted for unpaid FMLA leave time, and how benefit payments will need to be made.  Moreover, if, for example, the employer fails to notify the employee of the need to provide a fitness-for-duty certification, or that the employee is considered a "key employee", the employer will not be able to elect those options at a later date. 

I will be explaining each of the forms in more detail over the next few weeks.  Please check back for additional guidance regarding the various pitfalls to avoid when completing the new forms. 

Focus on Revised FMLA Regulations: Can An Employer Request A Second Or Third Opinion Before the Opportunity To Cure?

Happy New Year!  We are closing in on the January 16, 2009 effective date of the Final Regulations, so I hope to cover a number of topics in the next few weeks. 
A client recently asked whether an employer must give an employee the opportunity to cure any deficiences in a medical certification pursuant to 29 C.F.R. Section 825.305(c) before the employer may seek a second or third opinion concerning the certification.  The Final Regulations do not address this issue.  According to the Final Regulations, an employee is required to provide a "complete and sufficient" certification to the employer if the employer's request otherwise complies with the applicable Final Regulations.  The employer shall advise an employee whenever the empoyer finds the certification incomplete or insufficient, and shall state in writing what additional information is needed to make the certification complete or sufficient.  A certification is considered incomplete if the employer receives a certification, but one or more of the applicable entries have not been completed.  A certification is considered insufficient if the employer receives a complete certification, but the information provided is vague, ambiguous or non-responsive.  The employer must provide the employee with seven calendar days (unless "not practicable under the particular circumstances despite the employee's good faith efforts") to cure any such deficiency.  See 29 C.F.R. Section 825.305(c). 
An employer who has reason to doubt the validity of a medical certification may require the employee to obtain a second opinion at the employer's expense.  Pending receipt of the second medical opinion, the employee is provisionally entitled to the benefits of the FMLA, including maintenance of group health benefits.  See 29 C.F.R. Section 825.307(b).  If the opinions of the employee's and the employer's designated health care providers differ, the employer may require the employee to obtain certification from a health care provider at the employer's expense.  The third opinion is final and binding.  See 29 C.F.R. Section 825.307(c).  Employers should refer to 29 C.F.R. Sections 825.307(b) and (c) concerning which health care providers may furnish a second or third opinion and, in the case of third opinions, the process for selecting the health care provider. 
Sections 825.305 and 825.307 of the Final Regulations are silent as to whether an employer must provide the employee with the 7-day opportunity to cure an insufficient or imcomplete certification before seeking a second opinion because the employer has reason to doubt the validity of the medical certification.  In many, if not most, cases, if an employer has reason to doubt the validity of the medical certification, the concern likely will arise from the fact that the initial medical certification is either incomplete or insufficient.  Given this, and given that an employer must provide the employee with an opportunity to cure if the certification is incomplete or insufficient, the best practice is to provide the opportunity to cure and then seek a second opinion if the employer still has concerns about the validity of the medical certification.  In addition, because the employer must pay for the second and third opinions, it would behoove the employer to attempt to resolve any issues with the certification through the 7-day opportunity to cure prior to expending monies on additional certifications. 
I suspect that we will see a Department of Labor opinion letter on this issue at some point. 
Please see my November 21, 2008 blog for a link to the full text of the Revised Regulations. 

Focus on Revised FMLA Regulations: Can An Employee Provide Some Other Information In Support of A Request for Leave Due to A Qualifying Exigency If the Active Duty Orders Contain Sensitive Information?

A client recently asked this question. I am told by those who have received active duty orders that they do not specify anything other than the start date of the active duty and the location to which the individual needs to report. That said, 29 C.F.R. Section 825.309(a) provides that, the first time an employee requests leave because of a qualifying exigency arising out of the active duty or a call to active duty status of a covered military member, an employer may require the employee to provide a copy of the covered military member's active duty orders OR other documentation issued by the military which indicates that the covered military member is on active duty or call to active duty status in support of a contingency operation, and the dates of the covered military member's active duty service. Given this language, if an employer is presented with the latter documentation, the employer should accept the documents as satisfying the requirements of 29 C.F.R. Section 825.309(a).

Please note that an employer also may require additional information from an employee requesting leave for a qualifying exigency, as set forth in 29 C.F.R. Section 825.309(b). Some of the items that the employer may require include: (1) a statement or description signed by the employee of appropriate facts regarding the qualifying exigency. The statement should include documentation that supports the request for leave. The Regulations provide these examples: a meeting announcement for informational briefings sponsored by the military, written confirmation of meetings with counselors, and bills for the handling of legal or financial affairs; (2) the approximate date on which the qualifying exigency commenced or will commence; and (3) the beginning and end dates of leave for a continuous period of time.

The Department of Labor has prepared a sample Certification of Qualifying Exigency for Military Family Leave (Appendix G to the Final Regulations) that an employer may require an employee requesting leave due to a qualifying exigency to complete.

Please see my November 21, 2008 blog for a link to the full text of the Revised Regulations.

Focus on Revised FMLA Regulations: How Breaks in Service Affect Eligibility

As promised, I will be reporting on the specific revisions to the FMLA Regulations in individual blogs over the next few weeks in the hopes of getting everyone "up to speed" prior to the January 16, 2009 effective date.

With layoffs in the news, I thought that it would be an appropriate time to discuss breaks in service and their impact on FMLA eligibility.

Employees must have been employed with their employer for at least twelve months to be eligible for FMLA leave. Under the existing FMLA Regulations, the 12 months need not be consecutive, but there is no guidance in the current Regulations as to how long an employer is required to "look back" when the employee has had a break in service.

The Revised Regulations provide that, although the 12 months still need not be consecutive, employment prior to a continuous break in service of seven years or more does not need to be counted. In the proposed Regulations, the Department of Labor (DOL) had proposed a five year break-in-service period. However, the DOL received comments that any cap on the break in service was contrary to the admittedly ambiguous language of the Regulations, and that women who take extended leaves from the workforce to care for children or ill family members might be particularly adversely affected by the change. In extending the permissible gap to seven years, the DOL expressed its belief that it strikes an appropriate balance between the interests of employers, many of whom retain records for seven years, and employees.

There are two exceptions to the cap in the Revised Regulations for breaks in service resulting from an employee's fulfillment of National Guard or Reserve military service obligations, and breaks where a written agreement exists concerning the employer's intention to rehire the employee after the break in service.

The Revised Regulation also provides that employers may recognize employment prior to a continuous break in service of more than seven years when determining whether an employee has met the 12-month requirement. However, if the employer does so, it must do so uniformly with respect to all employees with similar breaks in service.

This new development means that employers will need to evaluate their record-keeping practices to ensure that they retain records of employment for all employees for at least seven years. Given that there is a two year statute of limitations on FMLA claims, and a three year statute of limitations when the claim is premised upon a willful violation, employers would be prudent to maintain records of the duration of their former employees' employment for ten years.

Please see my November 21, 2008 blog for a link to the full text of the Revised Regulations. The new Regulation concerning breaks in service can be found at Section 825.110 (eligible employee) of the Revised Regulations.

DOL Releases Revised FMLA Regulations!

On November 17, 2008, at long last, the Department of Labor issued Final Regulations concerning the FMLA and the amendments to the FMLA under the National Defense Authorization Act.  As anticipated, the Regulations make significant changes to the ways in which employers will need to administer leave under the FMLA.  

The new Regulations take effect on January 16, 2009.  Before then, employers will need to: 

  • revise their existing FMLA policies to incorporate the changes for nonmilitary and military FMLA leave;

  • adopt the new certification forms and general, eligibility, rights and responsibilities, and designation notices;

  • train their human resource professionals and supervisors concerning compliance with the new Regulations;

  • ensure that other policies are consistent with the new FMLA Regulations; and

  • ensure that their job descriptions accurately describe the essential functions of each position.

Please see the Firm's ALERT concerning the Final Regulations.

Also, the Final Regulations as they appear in the Federal Register.

In future articles, I will be discussing each of the new Regulations in more detail, and discussing some scenarios that highlight the changes and how employers will need to amend their FMLA practices going forward.